Finley, who argued similar case before high court in 1996, says buffer zone of some kind will probably survive latest First Amendment challenge

“I do not expect the Supreme Court will rule you can never use a buffer zone.”

Lucinda Finley, professor of law

University at Buffalo

BUFFALO, N.Y. – The current U.S. Supreme Court debate over
whether to maintain buffer zones restricting protestors at
Massachusetts reproductive clinics returns to familiar
constitutional territory justices already have ruled on, University
at Buffalo Law School faculty member Lucinda Finley says.

Finley, the Frank G. Raichle Professor of Trial and Appellate
Advocacy and UB vice provost for faculty affairs, successfully
argued in 1996 before the Supreme Court in favor of establishing a
15-foot buffer zone around Western New York reproductive health
clinics to protect clients from harassment from protestors. This
time, with the Supreme Court appearing evenly divided while hearing
arguments earlier this month in a First Amendment challenge to a
Massachusetts law, Finley says the idea of buffer zones seem
well-established and with ample judicial precedent.

“I’ve lived this issue as a lawyer for many years of
protests, culminating in the murder of a doctor in Buffalo, and I
argued the legitimacy of a buffer zone all the way to the Supreme
Court, which upheld buffer zones against a First Amendment
challenge,” she says.

Because of that ruling — Schenck v. Pro-Choice Network of
Western New York — there is a 15-foot buffer zone around the
doorway and driveway entrances of Western New York reproductive
clinics. There also are buffer zones in polling places, funerals
and at the Supreme Court building itself, a precedent that seems
established and approved by the Supreme Court, according to
Finley.

“I do not expect the Supreme Court will rule you can never
use a buffer zone,” she says. “Buffer zones are
basically justified as public safety rules, ensuring safety of
traffic and free flow of pedestrians, along with the ability of
people to go to a clinic without harassment, pushing, shoving, you
name it.

“Given the U.S. Supreme Court twice upheld buffer zones
around reproductive clinics, it surprised me and many other people
they even took the case in Massachusetts.”

Finley says the fact the Supreme Court agreed to hear the case
of Massachusetts buffer zones could reflect the change in
composition of the Supreme Court justices since 1996 when they
upheld the right to maintain buffer zones in Western New York,
along with upholding a similar statute in Colorado in 2000.

“The fact they took the case and the oral questions they
asked suggest new justices who replaced (Sandra Day) O’Connor
and (William) Rehnquist are more skeptical about the need for
buffer zones,” Finley says.

A reasonably informed guess may be the judges think 35 feet is
too far to push away protestors, Finley says.

“It may simply be the Massachusetts case will come down to
if someone wants to try to talk with someone with one-on-one public
engagement, they have to be able to speak in conversational tones
but not so close that they harass the person.

“We can’t speculate until we see the decision
whether there will still be leeway to establish smaller
protest-free zones around the clinic.”

The Supreme Court’s deliberations raise speculation on
what the buffer-zone decision will be and how that will affect the
ongoing pro-life, pro-choice debate around abortion. When hearing
arguments on the case Jan. 15, four of the more liberal justices
asked questions indicating they believed the 35-foot buffer zones
created by the 2007 law were a valid response to decades of
harassment and violence at abortion clinics in Massachusetts,
including a shooting rampage at two clinics in 1994.

The court’s more conservative members questioned the need
for the law, describing the buffer zones as a blunt and selective
instrument. But Chief Justice John G. Roberts Jr., who almost
certainly holds the crucial vote, asked no questions, raising
speculation on the court’s final decision.

Finley is available for interviews by contacting Charles
Anzalone at the UB Office of Communications at6 716-645-4600 or at
anzalon@buffalo.edu.